[blindlaw] The reasonably prudent blind person

[Noel Nightingale]

Blindlaw listers:
I just ran across an article in the May 1990 Braille Monitor and thought
some of you might like to read it for the firtst time or re-read it.


THE REASONABLY PRUDENT BLIND PERSON: REFLECTIONS ON THE
TEACHING OF THE LAW AND PERCEPTIONS OF BLINDNESS

by Christopher Kuczynski

Christopher Kuczynski is the first vice president of the National
Federation of the Blind of Pennsylvania and a practicing attorney with
Dechert, Price,
and Rhoads, a prestigious Philadelphia law firm. Here are his thoughts
about some of the many misconceptions about blindness. This article
first appeared
in the February edition of The Blind Activist, the newsletter of the
National Federation of the Blind of Pennsylvania The law of torts says,
among other
things, that all people have a legal duty to act in such a way as to
avoid creating an unreasonable risk of harm to others. The benchmark for
determining
whether a person has conformed to this duty is the so-called reasonably
prudent person. This standard suggests that, given a particular
activity, people
are required to act as the average person (not the extraordinarily
careful or the excessively daring; not the most intelligent or least
perceptive) would
under the same or similar circumstances. The prudent blind person is
required to take into account his or her lack of eyesight when carrying
on daily activities
that could present a risk of harm to others, but still must act
reasonably in all circumstances. This standard is not surprising. Since
blindness can be
defined functionally, it stands to reason that blind people should and
do employ alternative techniques to do that which others do by sight.
Using a white
cane is a simple example of how an individual acts as a reasonably
prudent blind person when traveling on the streets.

All of this would seem to suggest that blind persons, like anybody else,
ought to be required to act reasonably. If our failure to do so causes
injuries
to another, we ought to be liable for them. Similarly, if our failure to
employ reasonable care contributes to our own injuries, our damages in a
law suit
ought to be reduced accordingly, regardless of our blindness. As people
who realize that freedom means responsibility, we would not have it any
other way.
Most of the blind people I know, like most of the sighted, perform the
functions of daily life in a way that is reasonable.

When blind people act unreasonably (or negligently) it is because they
fail to pay attention, attempt to do things quickly and carelessly, or
simply have
no regard for the safety of others. The blind are no more likely to be
negligent than the sighted, and in no circumstance is negligence a
function of eyesight.
Yet the blind are a favorite class of negligent actors in torts law
hypothetical situations. This summer I took a nationally recognized bar
review course.
The blind individuals I met in the torts lectures did not resemble any
of the people I know. They were often being run down by automobiles
because they
could not see whether the traffic light was red or green never mind that
the blind have developed alternative techniques by which to cross
streets safely
without looking at the traffic lights. When a sighted person crossed
against a light in the examples presented, it was because he or she was
in a hurry
or was paying attention to something else. When a blind person crossed
against the light, it was because he or she could not see. These same
hypothetical
blind people repeatedly fell into holes because apparently they were not
perceptive enough to realize that they needed to carry white canes while
traveling.

But are these examples really harmful to the blind? After all, aren't
they just teaching tools? I don't know to what extent lawyers'
perception of blindness
may be shaped by these teaching tools; however, the comments of one
professor from a prominent law school in Washington, D.C., cause me to
wonder whether
these teaching tools are completely harmless. The professor was
illustrating the idea of contributory negligence. The example he
presented in front of
about 300 law students was as follows: A pedestrian, suffering injuries
caused by an incident at an intersection, sues the driver of the car
involved,
claiming that he was exceeding the speed limit. The driver claims that
the pedestrian, who is blind, acted negligently by crossing against the
light.

To demonstrate that the pedestrian's conduct was negligent (or
unreasonable) the professor asked: Now, would a reasonably prudent blind
person have crossed
that intersection without assistance? With a real sense of confidence
and believing that the answer to his question was obvious, he responded,
I don't
think so. The professor obviously never considered the possibility that
the pedestrian was not paying attention or was in a hurry for a late
appointment
or simply thought he could get across the street before the light turned
red. He automatically assumed that the negligent conduct was a failure
to obtain
assistance and that the average blind person would have certainly done
so.

Am I making too much of a casual remark? With the same confidence as
that law professor, I respond, I don't think so. Remember that the
reasonably prudent
blind person is the average blind person. The blind people I know
regularly cross busy streets without assistance, utilizing appropriate
techniques. But
the professor's question and answer suggest that blind people who
perform the routine act of crossing a street without assistance are
either noteworthy
exceptions to a general rule of diminished competence (the super-blind)
or are hazards to themselves and society.

If a law professor, working in a major metropolitan center, (where the
opportunity to observe independently functioning blind people presents
itself frequently)
does not believe that the average blind person can cross a street
without assistance, is it surprising that the United States Congress and
the Federal
Aviation Administration have taken so long to recognize that the blind
are competent air travelers? If blind people are depicted in torts
classes and in
nationally administered bar review courses as persons whose negligence
is a function of blindness rather than simply a part of what it means to
be human,
is it any wonder that the State Department assumes that blind people
will be inherently more vulnerable to attacks while serving as Foreign
Service Officers?
If negligent blind people are seen engaging in the kind of conduct that
simply does not conform with reality, is it difficult to understand why
legislation
concerning the blind has long been custodial seeking to protect us from
our alleged inability to make judgments about what is good for us? The
existence
of the erroneous perceptions about blindness, though it can be
understood, must not be permitted to continue. The National Federation
of the Blind will
persist in its efforts to attain equality, opportunity, and security for
blind people everywhere. The law professor may have believed that his
comments
about the blind man crossing the street made no impression or, worse
yet, that they were accepted by all who heard them. The reaction of the
people around
me demonstrates, however, that public perceptions about blindness are
changing. Several of my friends turned to me and were incredulous. They
have seen
me travel independently and asked me, already knowing my response, if I
believed what the professor had said. I found, in fact, that I was
somewhat more
forgiving than they. I tried to account for the professor's
misconceptions, but my friends were offended.

This outrage, this belief that something was wrong with the professor's
statement about blindness and blind people, represents the changes in
public sentiment
that have been brought about by the work of the National Federation of
the Blind.